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The truth about Canadas immigration detention system is shocking: Reasonable Doubt

News stories in the last six months have been rife with questionable detentions of foreign nationals and permanent residents for immigration reasons. In April, there was the long-fought release of Kashif Ali, who spent seven years in a maximum security prison, often in solitary confinement, because Canadian authorities were unable to deport him to his home country of Ghana. In August, Ontario Superior Court Justice Edward Morgan ordered the release of Ricardo Scotland after finding that he had spent 18 months in prison for no real reason at all. Just two weeks ago, Abdirahmaan Warssama launched a multimillion dollar lawsuit against the Canadian government in connection to his five-year imprisonment by immigration officials.

Despite this recent notoriety, most people are still in the dark about the general administration of immigration detention in Canada and how such long-term detentions come to be. Hopefully this article will clear some things up about the murky quagmire that is our countrys approach to imprisoning non-Canadians under the authority of the Immigration and Refugee Protection Act (IRPA).

Based on the powers granted to them by section 55 of IRPA, immigration officers (i.e. officers of the Canada Border Services Agency (CBSA)) can arrest a foreign national or a permanent resident if they have reasonable grounds to believe that the person who is being arrested is inadmissible to Canada and is either a danger to the public or unlikely to appear for an immigration proceeding or deportation. There are many reasons a person may be found to be inadmissible to Canada, including criminality (section 36), health reasons (section 38) and non-compliance with IRPA (section 41). No actual finding of inadmissibility is needed before an arrest is made. A person can be arrested before their admissibility hearing is even scheduled. After the arrest and initial processing, the arrestee is usually detained, or in other words, imprisoned. While arresting immigration officers do have the authority to release arrestees on conditions without detaining them, they rarely do so.

Once detained, the detainee is entitled to a review of their detention by a member of the Immigration Division of the Immigration and Refugee Board of Canada within 48 hours. This is effectively a bail hearing. At the review, a representative for the CBSA tells the presiding board member why the government thinks the detainee should remain in jail while awaiting their immigration hearing or deportation. The detainee is also entitled to make submissions and to be assisted by a legal representative. At the end of the hearing, the board member decides whether to release the detainee or to continue the detention.

If the detention is continued, the detainee then has another detention review within seven days of the first. If they are unsuccessful again, additional detention reviews are held approximately every thirty days following the seven-day review.

While board members must take into account all factors surrounding a persons detention at each and every detention review, according to the Federal Court of Appeals decision in Canada (MCI) v Thanabalasingham, they must offer clear and compelling reasons to release a person previously ordered detained. In practice, this means that the more unsuccessful detention reviews a detainee has, the harder it is for them to be released. The detainee has no option to skip or push back these reviews until they have a suitable plan of release worked out, so negative decisions often keep piling up.

Even if a board member orders the release of a detainee, release is not certain. Usually, detainees are released under the supervision of one or more bondspeople. A bondsperson is typically a family member or a friend who agrees to supervise the detainee after release. To ensure that bondspeople take their duties seriously, they are often required to put down a sum of money as insurance that the detainee will not breach his release conditions and will not go into hiding after release. During the detention review, the Board Member makes sure that the bondsperson is a suitable supervisor and that they are able to pay the money that they promised. So far so good.

The problem arises after the hearing. If release is ordered, when the bondsperson is outside of the hearing room signing the necessary documents and undertakings, a CBSA officer can independently demand that bondsperson provide additional evidence about their finances. If the officer is not satisfied with that evidence, he or she can refuse to release the detainee, despite the Board Members release order. Neither the IRPA nor its regulations specify or limit the evidence that an officer can request, allowing the CBSA to impose whatever standard they see fit, thus effectively bypassing rulings from the Board and keeping people detained.

Immigration detention is no joke, especially in the long term. While there are three immigration holding centres (IHCs) in Canada tailored specifically for housing immigration detainees and offering a variety of services to their occupants, the amount of detainees they accommodate is woefully inadequate: the Ontario IHC can accommodate up to 195 detainees, the Quebec IHC has a upper limit of 109 and the British Columbia IHC can accommodate a paltry 24 detainees, and even then for no longer than 48 hours.

The detainees who are not housed in IHCs are instead held in provincial jails maximum security correctional institutions where they are often kept in general population amongst people both accused of and serving sentences for wide ranges of criminal offences. Just like other inmates at these institutions, immigration detainees can be placed in solitary confinement. Unlike other inmates at these institutions, immigration detainees have limited access to the institutions educational and counselling resources, given that those resources are earmarked for criminal detainees. Most long-term immigration detainees in Canada are housed in provincial jails.

The decision as to whether a detainee is held at an IHC or a provincial jail is entirely in the hands of the CBSA. As of now, this process is opaque, and little is known about how these decisions are made.

Ironically, it is often the detainees who are least suited to spending time in a maximum security jail that end up going there. IHCs are not well-equipped to house detainees with complex medical issues, so those with severe mental health or other health concerns are often handed over to provincial institutions, where general conditions of detention are far worse.

Presently, there is no limit on how long a person can be held in immigration detention in Canada. While efforts have been made to institute a limit to the length of immigration detention, they have not been successful to date. By comparison, the United States has a 90 day limit, with a possibility of extension for another 90 days.

Thankfully, these issues with the immigration detention system are not going unaddressed. The CBSA recently reported a drop in the number of long-term immigration detainees, and announced that it will be using its federal funding to expand the use of alternatives to detention. The Immigration and Refugee Board of Canada has also committed to carrying out an independent audit of its detention review process with the aim of curbing unjustified long-term detentions. Only time will tell if these efforts result in any meaningful changes to the system.

Leo Rayner is an immigration lawyer with Legally Canadian. Reasonable Doubt appears on Mondays.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Legally Canadian or the lawyers of Legally Canadian.

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